1. INTERPRETATION
1.1 In these Conditions unless the context otherwise permits:- “NAC” Means the trading name of NAC Networkz Ltd, registered in the UK: SC353774. With its registered offices at Thistle Court, 1-2 Thistle Street, Edinburgh EH2 1DD “Authorised Representative” means a person whose job title is that of Director or Managing Director or a person who holds the office of director.
“Consumer” shall mean any natural person who in the contract with NAC or the reselling Customer acting for purposes that are not related to his trade, business or profession.
“Customer” means the person, firm, company, entity or organisation with whom NAC contracts for the purchase or resale of Products and/or supply of Services.
“the Conditions/ these Conditions” means the standard terms and conditions of sale set out in this document or such replacement standard terms and conditions notified to Customer as are in force at the date of the Contract and which at that date appear on NAC’s web site at www.naces.co.uk and/or which are available on request at NAC’s principal trading address at Thistle Court, 1-2 Thistle Street, Edinburgh EH2 1DD.
“the Contract” means any contract for the purchase and sale or other supply of Products and/or the supply of Services by NAC to a Customer.
“Electronic Means” means any electronic means including without limit on the Web, by EDI or XML.
“Products” means any Products (including, for the avoidance of doubt software and instalments of the Products or any parts of or for them) sold by NAC to a Customer.
“Services” means any services supplied by NAC to the Customer.
“Special Order Products” shall mean Products that are classified in NAC’s current product listing as special order products or have been ordered specifically by Customer or configured to Customer’s specifications.
1.2 The headings in these Conditions are for convenience only and shall not affect their interpretation.
1.3 The Conditions shall apply to sales of all Products including Special Order Products ordered for shipment to or within the UK mainland. NAC reserves the right to apply supplemental or other terms for Products to be shipped by NAC outside the UK mainland.
1.4. Without prejudice to the application of these Conditions additional and more detailed terms may apply for certain Products and suppliers including specific terms applicable to special prices offered by suppliers through NAC (“Special Terms”) and additional terms may apply with respect to NAC’s delivery and other aspects of its business. Any additional terms and the updated Special Terms will be made available on NAC’s web site www.naces.co.uk. It is the Customer’s responsibility to be aware of and adhere to the additional and Special Terms as current from time to time, and by ordering Products from NAC, the Customer agrees to be bound by additional and Special Terms.
2. BASIS OF THE SALE
2.1 All Contracts between NAC and a Customer shall be governed by these Conditions (and, where applicable, any other terms and conditions pursuant to Clause 1.3 and/or Clause 1.4) to the exclusion of any other terms and conditions not accepted in writing by an Authorised Representative of NAC, including without limit any terms on or referred to in any Customer purchase order. In the case of orders placed by Electronic Means which refer to any terms and conditions of the Customer NAC’s automatic taking on to its system of such order shall amount to a rejection of the Customer’s terms and conditions and an offer to supply the Products ordered on the basis of these Conditions. No variation to these Conditions shall be binding unless agreed by letter signed by an Authorised Representative of NAC. It is the Customer’s responsibility to be aware of the Conditions as current from time to time but NAC will use best efforts to notify Customer of any material changes to the Conditions before they become applicable. In addition to any acceptance of these Conditions by signing NAC’s account application form, the Customer’s acceptance of these Conditions shall also be made (in respect of the first Contract and all subsequent Contracts) either by (1) Customer providing a purchase order to NAC or (2) Customer accepting Products or Services from NAC, whichever occurs first.
2.2 No employee or agent of NAC other than an Authorised Representative has any authority to make any representation at all concerning Products or Services and an Authorised Representative has no authority to make such representation other than by letter (an “authorised representation”) and accordingly Customer agrees that in entering into any Contract it does not rely on any unauthorised representation and Customer agrees it shall have no remedy in respect of any unauthorised representation (unless made fraudulently).
3. CUSTOMER IDENTIFICATION
3.1 In placing an order including by Electronic Means Customer may utilise one or a combination of account name, account number and other forms of identification including password or other code issued to Customer (together and individually “Customer’s Identification” or “Customer Identification”).
3.2 It is the Customer’s responsibility to keep the Customer’s Identification confidential. Customer has the sole responsibility for its Customer Identification. Customer shall immediately inform NAC in case of loss of password or in case of any abuse or attempted abuse of Customer password or other Customer Identification. Customer agrees that Customer is entirely responsible for use of Customer’s Identification and that it is Customer’s responsibility to have in place security measures and procedures to ensure use of its Customer Identification only by authorised personnel for authorised purposes.
3.3 Customer agrees that NAC is entitled to rely absolutely on any orders placed on NAC which have utilised Customer’s Identification and to deliver as directed by such orders and to invoice and be paid in respect of such orders.
3.4 Customer agrees that any order placed on NAC including by Electronic Means mentioning or utilising Customer’s Identification is a valid and binding purchase order.
3.5 Customer acknowledges that NAC cannot guarantee the security of the Internet and the possibility of interception or corruption of data transmitted from Customer to NAC using correct Customer Identification, and that NAC is nonetheless entitled to rely on data transmitted in the form it is received at NAC.
3.6 NAC shall have no liability towards the Customer should the Customer’s customer have placed an order on the Customer for fulfilment by NAC or a corresponding order is placed by the Customer on NAC, where such orders are found by NAC or Customer to be fraudulent. Neither NAC nor its carriers shall be liable to Customer should NAC or the carriers have delivered Products in accordance with Customer’s instructions received before the order is released for shipment, and in no event shall NAC and its carriers be liable to Customer for any penalty or claim should the Products have been delivered in accordance with any instruction by the Customer or its customer after the order is released with respect to any changes to the order or an order cancellation.
4. INFORMATION AND CONFIDENTIALITY
4.1 All Product pricing, description, availability and related information (“Information”) provided by NAC, in any form, is the property of NAC or its suppliers. NAC hereby grants Customer a limited, non-exclusive, non-transferable license to use the Information for its internal use only for the purpose of Customer’s purchases and sales of Products sold by NAC to it. NAC shall be entitled to stop the provision of Information at any time without notice. Customer agrees to hold in confidence and not to directly or indirectly use, reveal, report, publish, disclose or transfer to any other person or entity any of the Information or utilise the Information for any purpose except as permitted herein. NAC makes no warranty, either express or implied on the Information or its accuracy. All Information is provided to Customer “as is”. If NAC provides Information to Customer by Electronic Means, Customer agrees to update such Information regularly to ensure its accuracy. Specifically but without limitation Customer is not entitled to utilise Information for any purpose other than in the normal course of business of a reseller and is not entitled to use, reproduce or display the Information in any way, which in NAC’s opinion; (1) would enable it to be identified as information obtained from NAC (2) would enable comparison of the Information with other suppliers’ information relating to Products or (3) could be damaging to NAC’s business interests.
4.2 NAC agrees to hold in confidence and not to directly or indirectly use, reveal, report, publish, disclose or transfer to any other person or entity any Customer sensitive information or utilise such information for any purpose if Customer has notified NAC in writing that such information is confidential. Customer agrees that NAC may disclose to its suppliers certain details (including personal data) about the Customer and NAC’s sales of the respective suppliers’ Products to the Customer.
5. ORDERS AND SPECIFICATIONS
5.1 The Customer shall be responsible to NAC for ensuring the accuracy of the terms of any purchase order, and shall be sole responsible for its selection of Products on any purchase order and the fitness of the Products for any particular purpose. NAC disclaims any liability for any errors in the Customer’s purchase order.
5.2 NAC reserves the right to make any changes to the Contract due to changes in the specification of the Products made by its suppliers or changes that are required to conform with any applicable safety or other statutory requirements. These changes will be duly notified to the Customer. The Customer cannot cancel or reschedule the Contract provided the changes do not alter the material terms of the Contract. For other types of changes, the possibility of cancellation will be subject to NAC’s discretion and conditions.
5.3 NAC is under no obligation to accept the withdrawal of an order or the cancellation of a Contract which has been accepted by NAC. If NAC agrees to accept the Customer’s withdrawal of any order or the cancellation of a Contract such agreement will only be effected by means of letter, fax or email signed or sent by an Authorised Representative of NAC.
5.4 Notwithstanding any other terms of these Conditions it is agreed that the provision or display of Product pricing and other Information (as defined in Clause 4.1) by NAC to Customer does not amount to an offer by NAC to sell such Product at that price or on any other terms. Supply of such Information is only an invitation to treat. An order by the Customer for Product or Services shall be the offer.
5.5 Notwithstanding any acceptance by NAC of Customer’s offer to purchase Products, if there for any reason has been a material or obvious pricing error by NAC, NAC shall be entitled within 30 days of its acceptance of such offer or delivery of the products to either invoice the Customer the true and correct list price (not exceeding the prevailing market price at wholesale level) of the Product at the date of order or, if the Customer shall prefer, upon notice to Customer cancel the order and collect the mispriced Product at NAC’s expense and credit the Customer for the price paid and any charges (e.g. price and freight) invoiced by NAC. If the true price is lower than the quoted price, NAC will invoice Customer the lower true price for the Products. Customer should make reservations against pricing errors in its applicable sales terms and allow for Customer to cancel its sales order to its customers if notified about a pricing error from NAC’s side.
5.6 Orders for direct shipment to Customer’s customers or Special Order Products may require the Customer’s acceptance of additional terms including prepayment of the order and will be subject to additional fees. The Customer is responsible for the accuracy of all information provided about its customers including but not limited to name and ship-to address. NAC shall not be liable to the Customer for any loss or damage arising from inaccurate or erroneous information if NAC has relied upon such information or shipping instructions provided by the Customer. If the Customer requests a change to the ship-to customer name or address after NAC’s acceptance of the order such change shall be made in writing by an authorised officer of the Customer and NAC shall not act on any verbal instructions by the Customer or anyone acting on the Customer’s behalf. NAC shall have no obligation to monitor or verify whether the Customer or any orders placed by Customer are the subject to any fraudulent or other criminal activity or attempt by the Customer’s customers or any third party.
PRICE OF THE PRODUCTS
6.1 Subject to the provisions of Clause 5.5 and Clause 6.2:-
6.1.1 Prices for Products in NAC’s stock ready to be shipped will be established at the time the order is accepted by NAC.
6.1.2 If the Customer places an order for Products not in stock at the time of order (a “Backorder”) or the Customer places an
order for scheduled delivery, such orders shall be irrevocable and the price for such Products shall be the price established at
the time the Backorder or scheduled delivery is accepted by NAC.
6.2 Notwithstanding any of the foregoing NAC reserves the right to increase its prices after acceptance of a Backorder or
scheduled delivery due to an increase in its supplier’s price to NAC or an increase in direct costs to which NAC becomes
subject (including without limit costs resulting from currency fluctuation) but NAC shall only increase its price by such level
as is necessary to reflect such increases.
6.3 All prices quoted by NAC exclude the cost of transport from NAC’s warehouse to the Customer’s receiving point, as well
as configuration, fulfilment and other services provided by NAC.
6.4 All prices and charges are exclusive of any applicable Value Added Tax, which the Customer will be additionally liable to
pay to NAC. Unless otherwise stated prices exclude any copyright levies, waste and environmental fees, and similar charges
that NAC by law or statute may or shall charge or collect upon resale.
6.5 If Customer is offered special pricing for certain orders and such pricing is made available to NAC from its suppliers
(“Special Bids”), the Customer shall adhere to the applicable Special Terms and other terms and conditions of such Special
Bids and agrees to indemnify NAC for any claims made against NAC by the suppliers for Customer’s non-compliance with the
supplier’s terms and conditions. Customer agrees to pay any service fees charged for NAC’s pass-through of Special Bids and
other supplier driven benefits the Customer may receive, including any marketing funding, price protection and individual
rebates, and agrees that pass-through and payment of such benefits will be subject to NAC having received the benefits from
its supplier. The Special Terms may oblige the Customer to comply with certain requirements including but not limited to (i)
the sale of the Products only to specifically named end-users; (ii) the disclosure of end-user information to NAC and its
suppliers for the purpose of end-user verification; and (iii) the submission of copies of end-user invoices, end-user purchase
orders or end-user shipping documents to NAC and its suppliers. Subject to the Special Terms applicable for the individual
suppliers and Products, non-compliance with the Special Terms may entitle NAC and/or its suppliers to reclaim and invoice
the Customer in full for all discounts, rebates and other special price conditions granted to the Customer under the special
price.
6.6 It is the Customer’s responsibility to be aware of all Special Bids activity and the expiry of Special Bids. The Customer
shall not submit any purchase orders on NAC with prices that do not reflect valid and non-expired Special Bids, and NAC
shall not be liable to Customer for any variance between NAC’s invoice value and the value of expired Special Bids.
7. TERMS OF PAYMENT
7.1 Unless NAC shall have previously agreed in writing with the Customer that the Products shall be supplied on credit, payment for the Products shall be made in full by the Customer with the Customer’s order or on delivery or collection or completed installation date of the Products as determined by NAC. If payment is made by credit or debit card the Customer agrees to pay all fees and service charges incurred by NAC for the handling of such transaction including fees charged by the card company to NAC.
7.2 Where NAC has agreed to supply the Products on credit Customer shall pay the price of the Products within 30 days of the date of NAC’s invoice notwithstanding that title to the Products has not passed to the Customer. Customer shall not withhold, deduct or set off from its payments to NAC any amount owed by NAC to Customer without NAC’s prior written approval.
Invoices will be dated the day of dispatch of the Products. NAC shall be entitled at its absolute discretion to alter payment terms (other than on concluded Contracts) and withdraw or alter any credit limit granted at any time with notice. If Customer exceeds its credit limit or fails to qualify for continued credit terms, NAC may, at its sole discretion, delay subsequent shipments or require prepayment until NAC determines that Customer is once again qualified to receive credit terms.
Customer shall not set off or withhold any amount due to NAC against its receivables without NAC’s prior written approval, and shall in the event of a bona fide dispute, pay any undisputed part of the invoice.
7.3 The time of payment shall be of the essence. If the Customer fails to make a payment on the due date then without prejudice to any other right or remedy available to it NAC shall be entitled to:-
7.3.1 cancel the Contract or suspend any further deliveries or suspend any Services to the Customer; NAC may at its discretion grant Customer a reasonable cure period before cancelling the Contract due to non-payment;
7.3.2 appropriate any payment made by the Customer to such of the Products as NAC may think fit (notwithstanding any purported appropriation by the Customer); and
7.3.3 collect and repossess any unpaid Products in accordance with section 9 below.
Customer accepts that NAC will exercise its statutory right to claim interest and compensation for debt recovery costs under the late payment legislation if NAC is not paid according to agreed credit terms.
7.4 If necessary, Customer shall provide NAC Credit Department with copies of its annual financial statements and its quarterly statements within sixty (60) days of the close of the fiscal period to which they relate. Customer shall inform NAC promptly if there is a change of ownership or control of Customer or its direct or indirect parent company (excluding changes of ownership of the shares of a publicly quoted company which do not result in a change in control of the company’s board of directors or other governing board), a management buy-out, or all or a substantial part of the Customer’s assets are sold or otherwise transferred to any non-affiliated company or member of the Customer’s group of companies.
7.5 In the event Customer intends to sell, assign, factor or otherwise transfer any book debt owed to Customer or to enter into any form of invoice discounting arrangement Customer agrees to inform NAC in writing prior to entering into any such arrangements.
7.6 It is NAC’s policy not to accept cash as a method of payment for Products or Services.
7.7 If NAC issues a credit note and the Customer does not utilise the credit note within a period of 12 months from the date of its issue, NAC shall have the right to cancel the credit note and the Customer shall not be entitled to a replacement or any payment in respect of the same.
7.8 Any credit balance shown on a Customer’s statement of account issued by NAC which remains on the statement for a period of 12 months will be forfeited by the Customer who shall no longer have any rights to the same.
7.9 NAC reserves the right to issue and send all invoices to the Customer in an electronic format, and the Customer accepts to receive all invoices electronically including receipt of invoices by e-mail.
DELIVERY
8.1 Delivery of the Products shall take place from NAC’s warehouse. Unless the Customer shall have notified NAC in writing
within 10 working days of the date of NAC’s invoice that the Products have not been received or that the Products were
damaged then delivery shall be deemed to have taken place in accordance with the Contract and the Customer shall not be
entitled to raise any claim of short or mis-shipment or damage to the Products.
8.2 The Customer shall upon receipt of the Products sign the delivery note (proof of delivery) and be responsible for
complying with the applicable shipping requirements of NAC and its carriers details of which are made available at NAC’s
web-site (www. naces.co.uk). The Customer’s sign-off on NAC’s delivery shall be at carton level. NAC shall be entitled to
assume that any person who both reasonably appears and claims to have authority to accept delivery who signs a note in
respect of the Products on behalf of the Customer or the Customer’s customer does in fact have the authority.
8.3 Any dates quoted or scheduled for the delivery of Products are approximate only and NAC shall not be liable for any delay
in delivery of the Products howsoever caused.
8.4 Partial delivery is allowed unless otherwise mutually agreed by both parties. Failure by NAC to deliver the rest of the
Products shall not entitle the Customer to treat the order as a whole as repudiated.
8.5 Where NAC has agreed to ship Products direct to the Customer’s customer any such shipment shall be deemed to be
delivery to the Customer and any refusal by the Customer’s customer to accept delivery shall be deemed to be a refusal by the
Customer. It shall be the Customer’s obligation to report any delivery discrepancies in accordance with Clause 8.1 and comply
with Clause 8.2 above when Products are shipped direct to the Customer’s customer or when the Products are forwarded by the
Customer to its customers.
8.6 The Customer shall bear all costs associated with the unjustified refusal of Products. If the refusal is made on the grounds
that the order was wrongly placed (i.e. wrong product, wrong pricing, etc.) and the refusal is accepted by NAC, NAC reserves
its right to charge accordingly additional fees for return transportation and administrative expenses related thereto, and original
carriage costs will not be reimbursed. NAC may charge Customer a refusal fee should the Customer’s customer unjustifiably
refuse to take delivery of a shipment from NAC.
RISK AND TITLE
9.1 Risk of damage to or loss of Products shall pass to the Customer or its customer at the time of delivery or if the Customer
unjustifiably fails to take delivery of Products the time when NAC has tendered delivery of the Products.
9.2 Notwithstanding delivery and the passing of risk of the Products or any other provisions of these Conditions, title to the
Products shall not pass to the Customer until NAC has received in cleared funds payment in full of the Products.
9.3 Until such time as title to the Products passes to the Customer the Customer shall:-
9.3.1 hold the Products as NAC’s fiduciary agent and bailee; and
9.3.2 keep the Products separate to those of the Customer and third parties; and
9.3.3 keep the Products properly stored protected and insured, and identified as NAC’s property; and
9.3.4 accept that Products may be labelled as being NAC’s property until NAC is paid.
9.4 Until such time as the title in the Products passes to the Customer (and provided the Products are still in existence and have
not been resold), NAC shall be entitled at any time to require the Customer to deliver up the Products to NAC and if the
Customer fails to do so forthwith to enter upon any premises of the Customer or any third party where the Products are stored
and repossess the Products.
9.5 The Customer’s right to possession of the Products shall terminate immediately if:-
9.5.1 the Customer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or
otherwise takes the benefit of any Act for the time being in force for the relief of insolvent debtors, or (being a body corporate)
convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory)
except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or
manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a
petition presented to any court for the winding up of the Customer or for the granting of an administration order in respect of
the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or
9.5.2 the Customer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained
against him/it, or fails to observe/perform any of his/its obligations under the Contract or any other contract between NAC and
the Customer or is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or the Customer
ceases to trade; or
9.5.3 the Customer encumbers or in any way charges any of the Products.
9.6 Customer is entitled to resell the Products in the ordinary course of business. Customer is not able or entitled to offer the
Products as collateral or otherwise grant a charge in respect of the Products until title has passed to the Customer in accordance
with these Conditions. Customer shall inform its customers that title to the Products is retained by NAC until Customer has
paid NAC, and shall ensure that its customer has agreed with the Customer that any unpaid Products shall be returned to NAC
in the event of Customer’s failure to pay NAC’s invoices when they fall due. The Customer shall upon NAC’s request provide
NAC with all details and information necessary for NAC to collect the Products.
SUPPORT, WARRANTIES AND INSTALLATION
10.1 NAC does not manufacture the Products and subject to the conditions set out below in this Clause 10 NAC may only sell
the Products with the benefit of the manufacturer’s warranty unless a support agreement has been agreed.
10.2. NAC shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence,
abnormal working conditions, failure to follow NAC’s or the manufacturer’s or publisher’s instructions, (whether oral or in
writing) misuse or alteration or repair of the Products without NAC’s approval.
10.2.1 NAC shall be under no liability under the above warranty if the total price of the Products has not been paid.
10.3 All warranties, conditions or other terms implied by common law or statute, or otherwise in connection with the sale or
supply of goods or goods or services (save, in the case of goods, as to title) are excluded to the fullest extent permitted by law.
10.4 If requested, NAC will provide support and maintenance services for purchased products and services in addition to
manufacturer’s warranty. Unless otherwise instructed, these support services will be governed by the standard NAC support
desk Service Level Agreement:
- 30 Minute Call Response
- 8 Hour Fault Resolution as pre-agreed
- 9-5 Monday – Friday Support Desk unless otherwise agreed
- Parts & Labour (of pre-agreed supported hardware/software) Included
- 72 Hour Order to Delivery of replacement equipment unless otherwise agreed
10.5 NAC will provide a comprehensive installation service where required by the Customer. NAC will provide the Customer
with the following Equipment and Services in accordance with, and where set out in any acceptance document:
10.5.1 The Equipment required for the Services as described in any acceptance document.
10.5.2 Configuration on installation, changes, advice and support of that configuration for the duration of the support
agreement.
10.5.3 Timely provision and installation of relevant firmware or software as provided by the vendor of the relevant hardware
where required for security or performance purposes.
10.5.4 Where necessary for any installation, provisioning and support purposes, the Customer will allow full access to relevant
hardware, structured cabling and networking services supported under NAC support agreement, as well as opportunity for full
liaison with internal or third party IT Support in the event of subjective performance issues.
10.6 NAC’s liability for direct loss or damage arising from damage to tangible property for which NAC is liable shall be
limited to the VAT exclusive price of the relevant Product or Service. In no event shall NAC’s liability exceed the maximum
amount of NAC’s insurance cover.
10.7 Nothing in these Conditions shall in any way exclude or limit any liability NAC may have for death or personal injury
caused by its negligence.
10.8 NAC shall not be liable to the Customer or be deemed to be in breach of any Contract by reason of any delay in
performing or any failure to perform any of NAC’s obligation in relation to the Products or Services if the delay or failure was
due to any cause beyond NAC’s reasonable control. Without prejudice to the generality of the foregoing the following shall be
regarded as causes beyond NAC’s reasonable control:-
10.8.1 Act of God, explosion, flood, tempest, fire or accident;
10.8.2 Act of terrorism, war or threat of war, sabotage, insurrection, civil disturbance or requisition;
10.8.3 Acts restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental or
parliamentary or local authority;
10.8.4 Import or export regulations or embargoes;
10.8.5 Strikes lock outs or other industrial actions or trade disputes (whether involving employees of NAC or a third party);
10.8.6 Difficulties of NAC’s supplier in obtaining raw materials labour fuel parts or machinery.
10.9 If Customer is selling Products or Services purchased from NAC to a Consumer the Customer shall ensure the Consumer
is given sufficient and appropriate information and descriptions as to the Product’s or Services’ fitness for the purpose for
which the Products or Services are normally used and any particular purpose the Consumer has required or agreed with the
Customer. Customer shall not remove or replace any labelling, user manuals, components or other material from the Product as
supplied by the manufacturer or NAC, and shall not in its advertising, marketing or labelling provide any public statements on
the specific characteristics of the Products or Services on behalf of NAC, the manufacturer or their representatives.
10.10 Customer accepts liability for the Products’ conformity with the Customer’s Consumer contract (‘conformity’ as defined
by the EU Directive 1999/44/CE of May 25, 1999 and legislation implementing the Directive), and Customer shall not offer
any warranties or representations to the Consumer as to the quality, fitness for purpose of the Products without the
manufacturers’ express consent. Customer agrees to hold harmless and indemnify NAC and the manufacturers against any loss,
costs, and damages caused by the Customer’s acts or omissions, and non-compliance with the obligations set forth in Clause
10.9, Clause 10.10 and Clause 10.11. If Customer is held liable to the Consumer caused by a Product’s lack of conformity
resulting from an act or omission by the manufacturer or NAC, or any other intermediary, Customer may by law or statute be
entitled to pursue remedies against NAC, the manufacturer or any other person liable in the contractual chain. Provided
Customer is legally entitled to pursue such remedies and NAC is held liable by a competent court of law, NAC’s liability to
Customer shall be limited to an amount corresponding to the Customer’s original purchase price of the Product or Service
giving rise to the claim by the Consumer.
10.11 Should the Product warranties offered by the manufacturers or NAC under these Conditions be restricted compared to
the guarantees the Consumer is entitled to under law, the Customer agrees to take sole responsibility towards the Consumer for
the excess liability and waives any claim it may have against NAC in respect of such excess.
10.12 The Products are subject to the intellectual property rights of NAC’s suppliers (i.e. the Product manufacturers).
Customer is not authorised to alter, cover, or remove any reference to such intellectual property rights on the Products, and
shall adhere to any guidelines and restrictions provided by NAC’s suppliers if the Customer is granted a right to use such rights
in the marketing and resale of Products. NAC shall have no duty to defend, indemnify or hold Customer harmless from and
against any or all claims brought against Customer or damages and costs incurred by Customer arising from the infringement
of a third party’s intellectual property rights, except to the extent NAC’s supplier is offering such defence or indemnification to
NAC on a pass through basis. Upon threat of claim or claim of infringement, NAC may, at its option (i) procure the right to
continue using any part of Product, (ii) replace the infringing Product with a non-infringing Product of similar performance, or
(iii) refund to the Customer the purchase price paid by the Customer for the infringing Product. Notwithstanding any other
terms or conditions to the contrary NAC’s liability for infringement of intellectual property rights under these Conditions shall
not exceed the Customer’s purchase price for the infringing Products.
RETURNS AND REPAIRS
11.1 Except for Special Order Products, which are expressly excluded from the terms of this Clause 11 and cannot be returned
under any circumstances, if NAC agrees to accept the return of any Products (other than for the purpose set out in Clause 10
above) or agrees to carry out repairs to other products which have not been purchased from NAC or agrees to repair Products
which are out of warranty the Customer shall not send the same to NAC unless they are accompanied by an RMA number
previously advised by NAC support desk and a copy of the relevant sales invoice and are sent in their original packaging.
11.2 The Customer shall notify NAC within 10 working days of any delivery discrepancies or Product damages, other than for
the purposes set out in Clause 10. If NAC issues a returns number (RMA), Products must be returned to NAC within 10
working days of the date thereof. NAC reserves the right to refuse return of damaged Products should the manufacturer’s seal
be broken or compromised and charge the Customer return freight.
11.3 If NAC has agreed to carry out repairs or to replace Products (or any parts thereof) other than for the purpose set out in
Clause 10 above the Customer irrevocably authorises NAC to carry out such repairs or provide such replacements as shall
place the Products in proper working order.
11.4 NAC shall accept no liability for any damage to or loss in transit of Products returned to NAC whether under this Clause
11 or under Clause 10 above.
11.5 NAC does not offer stock rotation rights (or sale or return rights) and Customer shall have no expectation of such rights
being granted. If NAC has agreed to accept the return of Products, other than for the purposes set out in Clause 10 above or for
the purpose of carrying out any other repair or replacement, the Products must be returned at Customer’s expense in their
original packaging and in a clean resalable condition, and will be subject to a re-stocking fee at NAC’s discretion, failing
which NAC will refuse to accept the same and the Customer shall remain liable for the price thereof. Credit for such returns
will be at the price invoiced for the returned Products or the then current price, whichever is the lower.
11.6 Customer agrees to comply with NAC returns process and abide to the terms when returning any Product to NAC.
INSOLVENCY OF CUSTOMER
12.1 If:-
12.1.1 the Customer makes any voluntary arrangements with its creditors or becomes subject to an administration order or
(being an individual or firm) becomes bankrupt or (being a company) goes into liquidation otherwise than for the purposes of a
solvent amalgamation or solvent reconstruction;
12.1.2 an encumbrancer takes possession or a receiver is appointed of any of the property or assets of the Customer; or
12.1.3 the Customer ceases or threatens to cease carrying on business; or 12.1.4 NAC reasonably apprehends that any of the
events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly;
then upon the happening of any of the above, without prejudice to any other right or remedy available to NAC, NAC shall be
entitled to cancel the Contract and/or suspend any further deliveries or services under the Contract without any liability to the
Customer and if the Products have been delivered and not paid for then the price shall become immediately due and payable
notwithstanding any previous agreement or arrangement to the contrary.
EXPORT RESTRICTIONS
13.1 If Customer delivers the Products to any customer who may use the Products outside the United States or the European
Union or EFTA countries, Customer acknowledges and shall advise its customers that some Products are controlled for resale
or export by the U.S. Department of Commerce, the EU or EU/EFTA member state bodies and such Products may require
authorization prior to resale or export. Customer agrees that it will not export, re-export, or otherwise distribute Products, or
any direct products thereof, in violation of any dual use restrictions and export control laws or regulations of the U.S., the EU
or any EU/EFTA member state. Customer warrants that it will not resell, export or re-export any Products with knowledge that
the Products will be used in the design, development, production, or use of chemical, biological, nuclear, or ballistic weapons,
or in a facility engaged in such activities, unless Customer has obtained prior approval from the U.S. Department of
Commerce, the EU or the competent EU/EFTA member state’s government agency. Customer further warrants that it will not
export or re-export, directly or indirectly, any Products to embargoed countries or resell any Products to companies or
individuals restricted from purchasing Products including those listed on the Sanctioned Parties List published by the U.S.
Department of Commerce.
13.2 The restrictions set out herein change from time to time. If the Customer has any questions regarding its obligations under
U.S. export regulations the Customer should contact the Bureau of Export Administration, U.S. Department of Commerce,
Office of Export Licensing, Washington DC, USA (202) 377 4811 or the local U.S. Consulate. Information concerning
restrictions applicable to export from the EU and any intra-EU sales restrictions on dual use items and license requirements can
be obtained from the European Commission or the UK Export Control Organisation.
13.3 It shall be the Customer’s responsibility to comply with all export and other resale restrictions. Upon request the
Customer agrees to reaffirm in writing its compliance and its intentions to comply with applicable export and restricted user
and uses regulations.
CONFIGURATION AND OTHER SERVICES
14.1 If agreed in any particular case NAC will provide configuration Services to Customer. Configuration Services will be at
the price agreed at the time the order is accepted. The Customer shall be solely responsible for the accuracy of its order, the
specification of the components and their configuration and for ensuring that the configured product specified is satisfactory
for the purposes for which it is required including without limit that it has sufficient overall functionality, and will support, be
compatible and inter-operable with any hardware, software or middleware with which it is intended to operate.
14.2 Configuration Services will have a warranty of 14 days from the date of shipment to the Customer. NAC’s sole liability in
respect of any defective Services for which NAC is responsible shall be the repair by NAC or at NAC’s option replacement of
the Product on which the Services have been performed. (If any alleged defect shall be attributable to defect in Product the
provisions of Clause 10 shall apply). Claims in respect of defective Services must be made within 21 days of the date of
delivery of the configured Product.
14.3 NAC may offer other Services to Customer including direct fulfilment and billing, installation and support services,
storage and consolidation, and other logistics services. Such Services will be provided under these Conditions in addition to
specific terms agreed upon in writing with Customer.
MISCELLANEOUS
15.1 Customer is not allowed for any purpose whatsoever to use NAC’s logos and trademarks without NAC’s prior written
approval from an Authorised Representative.
15.2 Customer agrees that NAC may use Customer data, including any personal data, for the purpose of marketing and sales of
Products, and Customer agrees to NAC’s collection, storage and use of such data for this purpose. Personal data will not be
shared with third parties without the Customer’s consent. Customer agrees to receive Product information and promotions and
other communications from NAC by e-mail and other communication tools.
15.3 If applicable, Customer agrees to comply with its obligations as “distributor” under the Waste Electric and Electronic
Equipment Regulations 2010 including the take back of household WEEE and the information to users in private households.
Customer shall have no right to return any non-household WEEE to NAC or its compliance system, and shall indemnify NAC
against any costs incurred by NAC if such WEEE is returned to NAC. If the Customer’s registered address or ship-to address
is in a country other than the United Kingdom, the Customer shall be deemed the producer in such country and assume full
responsibility as producer under that country’s WEEE legislation including the obligation to report imports and pay any
applicable WEEE fees.
15.4 The Customer agrees to comply with the UK Bribery Act 2010 and corresponding legislation applicable in the
jurisdictions the Customer conducts its business (e.g. the U.S. Foreign Corrupt Practices Act). The Customer shall not make
any direct or indirect payment, offer to pay, or authorization to pay, any money, gift, promise to give, or authorization of the
giving, of anything of value to any government official or politician, or the immediate family of any such official or politician,
for the purpose of influencing acts or decisions of the government or such individual in order to assist, directly or indirectly,
Customer or NAC in obtaining or retaining business, or securing an improper advantage. The Customer’s commitment to
comply with the Bribery Act 2010 and other anti-bribery and corrupt practices legislation shall also extend to Customer’s
dealings with NAC and its suppliers, and the Customer’s customers and any other commercial parties.
15.5 The Customer shall not engage in deceptive, misleading, illegal, or unethical practices that may be detrimental to NAC or
the manufacturers of the Products, nor shall the Customer make any representations or warranties to its customers concerning
the Products outside the scope of the warranties offered by the manufacturers without NAC’s prior express written
authorisation, or make any representations or warranties to its customers that the Products are designed or licensed for use in
circumstances where the failure of the Products is likely to result in significant risks to health or safety, where fail-proof
delivery of time-specific information is required, or in otherwise hazardous environments requiring fail-safe controls,
including without limitation operation of nuclear facilities, aircraft navigation or communication systems, air traffic control,
and life support or weapons systems. The Customer shall pass on to its customers all Product information including any
restrictions applying to the Products and any terms and conditions pertaining to the licensing of software included in the
Products.
GENERAL
16.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing
addressed to that other party at its registered office or principal place of business or such other address as may at the relevant
time have been notified pursuant to this provision to the party giving notice.
16.2 No waiver by NAC of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent
breach of the same or any other provision.
16.3 If any provision of these Conditions is held by any authority to be invalid or unenforceable in whole or in part the validity
of the other provisions of these Conditions and the remainder of the provisions in question shall not be affected thereby.
16.4 These Conditions and any Contract shall be governed by the laws of Scotland and the Customer submits to the exclusive
jurisdiction of the Scottish Courts.
